Readings in the Philosophy of Law

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For sophomore/junior courses in Philosophy of Law. This anthology of classical and contemporary philosophical and legal essays and legal cases focuses on legal philosophy as its own subjectrather than as an outgrowth of social or political philosophy or applied ethics. The essays focus on how law is organized and the particular philosophical issues that law raises. The book requires students to think through actual debatesmany of them still live in the courts.

Preface

ix

Part I Law in Action

The Practice of Law

Lawyers' Ethics in an Adversary System

3

(9)

Monroe H. Freedman

Building Power and Breaking Images: Critical Legal Theory and the Practice of Law

12

(5)

Peter Gabel

Paul Harris

The Lawyer as Friend

17

(9)

Charles Fried

The Lost Lawyer

26

(8)

Anthony Kronman

The Rule of Law

Magnitude and Importance of Legal Science

34

(3)

David Dudley Field

Eight Ways to Fail to Make Law

37

(6)

Lon Fuller

The Problem of the Grudge Informer

43

(4)

Lon Fuller

Grudge Informers and the Rule of Law

47

(2)

H. L. A. Hart

The Rule of Law and Its Virtues

49

(7)

Joseph Raz

The Moral Force of Law

Crito

56

(7)

Plato

The Justification of Civil Disobedience

63

(8)

John Rawls

On Not Prosecuting Civil Disobedience

71

(7)

Ronald Dworkin

Elements of Legal Reasoning

On Interpretation: The Adultery Clause of the Ten Commandments

78

(3)

Sanford Levinson

Stare Decisis: The Use of Precedent

81

(9)

C. Gordon Post

Rules of Interpretation

90

(2)

William Blackstone

A Case Study in Interpretation: The Mann Act

92

(5)

Edward H. Levi

Cases Interpreting the Mann Act

97

(6)

Can a Murderer Inherit?

103

(8)

Part II The Nature of Law

Natural Law and Legal Positivism: Classical Perspectives

Summa Theologica

111

(6)

Thomas Aquinas

The Province of Jurisprudence Determined

117

(8)

John Austin

Formalism and Legal Realism

Preface to Cases on the Law of Contracts

125

(1)

Christopher Columbus Langdell

A Treatise on the Conflict of Laws

126

(3)

Joseph H. Beale

The Path of the Law

129

(4)

Oliver Wendell Holmes

Realism and the Law

133

(8)

Jerome Frank

Interpretation as Formal

141

(6)

Tony Honore

The Contemporary Debate: Hart versus Dworkin

Positivism and Separation of Law and Morals

147

(9)

H. L. A. Hart

Law as the Union of Primary and Secondary Rules

156

(4)

H. L. A. Hart

The Model of Rules

160

(10)

Ronald Dworkin

``Natural'' Law Revisited

170

(7)

Ronald Dworkin

Law and Economics

The Economic Approach to Law

177

(6)

Richard A. Posner

Law and Economics: An Analysis and Critique

183

(13)

Andrew Altman

Critical Legal Theory and Feminist Jurisprudence

Critical Legal Studies

196

(9)

Robert W. Gordon

Toward a Theory of Law and Patriarchy

205

(7)

Janet Rifkin

Jurisprudence and Gender

212

(11)

Robin West

Legal Realism, Critical Legal Studies, and Dworkin

223

(9)

Andrew Altman

Skepticism, Objectivity, and Democracy

232

(10)

Ronald Dworkin

Part III Philosophical Issues in Criminal Law

Punishment: Theory and Practice

Who Should be Punished?

242

(1)

Capital Punishment

243

(7)

The Utilitarian Theory of Criminal Punishment

250

(6)

Richard B. Brandt

Persons and Punishment

256

(7)

Herbert Morris

Restitution: A New Paradigm of Criminal Justice

263

(7)

Randy E. Barnett

Legal Cases in Criminal Law Racial Bias in Sentencing

270

(2)

Cruel and Unusual Punishment

272

(5)

Problems of Criminal Liability

Survival on a Lifeboat

277

(4)

The Principles of Criminal Law

281

(6)

Richard B. Brandt

Intention

287

(7)

H. L. A. Hart

Attempting the Impossible

294

(7)

Rape

301

(8)

Susan Estrich

The Battered Woman's Defense

309

(9)

Catharyn Jo Rosen

Is the Insanity Test Insane?

318

(9)

R. J. Gerber

What Is So Special about Mental Illness?

327

(7)

Joel Feinberg

The Cultural Defense in the Criminal Law

334

(9)

Harvard Law Review

The Rights of Defendants

Convicting the Innocent

343

(7)

James McCloskey

A Debate on the Exclusionary Rule

350

(12)

Malcolm Richard Wilkey

Stephen H. Sachs

Interrogation and the Right to Counsel

362

(16)

Criminal Justice and the Negotiated Plea

378

(7)

Kenneth Kipnis

The Race Card and Jury Nullification

385

(11)

Randall Kennedy

Part IV Philosophical Issues in Civil Law

Compensating for Private Harms: The Law of Torts

Negligence

396

(7)

William Prosser

Foreseeability of Risk

403

(3)

Negligence and Due Care

406

(7)

Tort Liability and Corrective Justice

413

(8)

Jeffrie G. Murphy

Jules L. Coleman

Legal Cases in Tort Law Efficiency and the Law

421

(1)

Liability without Causation?

422

(3)

A Duty to Rescue?

425

(5)

Wrongful Life and Wrongful Birth

430

(8)

Private Ownership: The Law of Property

Property

438

(6)

John Locke

Property and Sovereignty

444

(6)

Morris Raphael Cohen

Legal Cases in Property Property Acquisition

450

(4)

Taking without Compensation

454

(6)

Private Agreements: The Law of Contract

The Basis of Contract

460

(8)

Morris Raphael Cohen

Contract as Promise

468

(8)

Charles Fried

Legal Cases in Contract Law Surrogate Mother Contracts

476

(9)

Employment Contracts

485

(11)

Part V Philosophical Issues in Constitutional Law

Constitutional Government and the Problem of Interpretation

The Political Meaning of Constitutionalism: British, French, and American Perspectives